Right Thinking from the Left Coast

Tag: Law/Crime

There is a rising school of thought in this country that decrees that once you have a kids, your life is basically over. I don’t mean “your life is over” in the sense that mine is in that’s it’s difficult to go out more than occasionally and I spend a lot of non-work time attending my kids. I mean “your life is over” in that you must spend every single second watching and guarding your kids; that you can not let them out of your sight for a single moment; that you must be constantly paranoid about anything and everything that could happen; that you can never ever leave them to their own devices.

Lately, this mentality has been trickling into public law. There was the Texas mom who was arrested because her 6- and 9-year old were playing in the street outside her house. And now this helicopter parent mentality is being codified into law:

In an appeals court decision last week, three judges ruled that a mother who left her toddler sleeping in his car seat while she went into a store for five to 10 minutes was indeed guilty of abuse or neglect for taking insufficient care to protect him from harm.

Not that the child came to any harm; he seems to have slept through the whole non-incident.

But when the mom emerged from the store, she was confronted by cops, who’d been summoned by a mall guard when he noticed the sleeping child.

She was arrested and placed on the child-abuse registry — even though a Division of Child Protection and Permanency agent visited her home that day and found the kids well cared for.

If this had been the law back when I was a kid, Rahelen Skenazy — the lady who loves me more than the stars — would be on that registry. And since she had me wait in the car more than once, the state might have even placed me in foster care. That’s the threat that looms over anyone found guilty of neglect.

Look, I don’t want to minimize the danger of children being left in cars. A few years ago, the WaPo ran an award-winning horrific story about parents who forgot their kids were asleep in the back seat and left them there to die in the heat. Every now and then, some mom leaves her kids deliberately in the car and they die. To this day, I always put my laptop bag, groceries or whatever in the back seat just to make sure this doesn’t happen.

But to go to the extreme of saying any parent who leaves a child in car for any length of time is an abuser? On a day when it wasn’t hot? In a safe neighborhood? When crime rates are at their lowest level in 50 years?

This is one of those times I think that CPS and similar authorities have too much time and money on their hands; that there must be too few cases of true horrific abuse if they are going after a woman who left her toddler in the car for five minutes. I understand the concern. I wouldn’t really have a problem if the cops had talked to her and said something like, “look, we can’t be babysitters of the parking lot and make sure that kids are only in there for a few minutes.” But arresting her? Placing her in a child abuse registry (oh, goodie, another registry!)?

Republican Sen. Ted Cruz of Texas on Friday criticized President Barack Obama for not arresting people in Colorado who violated federal law by using marijuana.

“A whole lot of folks now are talking about legalizing pot. The brownies you had this morning, provided by the state of Colorado,” he jokingly said during his keynote speech at Texas Public Policy Foundation’s Policy Orientation.

“And you can make arguments on that issue,” Cruz continued. “You can make reasonable arguments on that issue. The president earlier this past year announced the Department of Justice is going to stop prosecuting certain drug crimes. Didn’t change the law.”

Voters in Colorado and Washington state voted to legalize the recreational use of marijuana in 2013, but federal law still prohibits the use of the drug. The Department of Justice announced in August of 2013 that it would not target for arrest adults who used marijuana in compliance with state laws.

Cruz said the Obama administration should continue imprisoning people for using marijuana until federal law is changed.

“You can go to Congress, you can get a conversation, you could get Democrats and Republicans who would say, ‘We ought to change our drug policy in some way,’ and you could have a real conversation, you could have hearings, you could look at the problem, you could discuss commonsense changes that maybe should happen or shouldn’t happen. This president didn’t do that. He just said, ‘The laws say one thing’ — and mind you these are criminal laws, these are laws that say if you do ‘X, Y, and Z’ you will go to prison. The president announced, ‘No, you won’t.’”

There is a small point to be made here. Marijuana use is still illegal under federal law, even it is legal under some state laws. The President is choosing not to enforce federal law.

The problem here is that our Congress has had ample opportunity to update federal law. In the wake of the Raich decision, there have been numerous attempt to change federal law so that it will respect the will of the states. This has not even been seriously considered by our Congress. They have not even had a real debate about it. They are so obsessed with never looking like hippy pot-smoker enablers, that they have refused to do anything. This “conversation” that Mr. Cruz talks about has not happened because it has been stomped down.

So I would turn this around. The correct criticism is of Congress, who have had nine years to change federal law and have refused to do so. I understand that Obama’s actions come from an Administration that has been happy to ignore the law whenever it suits them. But what we’re talking about here is standard-issue prosecutorial discretion. We don’t prosecute people for kiddie porn if they take pictures of their kids in swimsuits. We don’t prosecute people for jaywalking if they’re running across the street to fight a fire. And we don’t prosecute people for smoking pot when that would involve arresting tens of thousands of people.

However, this does cut both ways. The President could (and knowing him, likely will) rescind this promise at his discretion. A future President could do so. Under the current legal regime, people could smoke pot in Colorado for ten years and then suddenly find themselves in federal prison. So it is incredibly important that Congress move to recognize the states’ rights of Colorado and Washington (a subject Republicans are all about when it comes to abortion or gay rights). It is important that we do start this conversation in Congress. If only Ted Cruz knew a member of Congress who could get that conversation started …

That “conversation” is not something that will happen overnight. Even if Congress were amenable to changing federal law, there are anti-drug treaties we are bound to that will need to be changed. That could mean years of work and negotiation. Given the realities of the situation, I think basic prudence demands that we (1) agree to suspend federal marijuana prosecutions in states that have legalized it; (2) begin the process of revising federal law and international treaties to create a consistent legal regime.

Williamson County State’s Attorney Charles Garnati earned a distinction among all Illinois prosecutors as he was sworn into office for his eighth term Monday. Garnati is now the longest continuously serving state’s attorney in Illinois, according to Patrick Delfino, director of the State’s Attorneys Appellate Prosecutor Office. Garnati, a Democrat from Carterville, announced his bid for re-election Sept. 21, 2011. He ran unopposed and was elected to an eighth consecutive term as the county’s top prosecutor Nov. 6.

In his 28 years as state’s attorney, Garnati said a lot of cases stand out, but he credits his staff and law enforcement for their part in winning 32 murder convictions in his seven terms on the job. “There are just so many good people that it’s hard to say anything other than it’s great to be Williamson County State’s Attorney,” he said. “I wouldn’t want any other job. This is a job I’ve wanted all my life, and the fact that I’ve made it for 28 years is kind of amazing to me.” At the end of his current term, Garnati will have served 32 consecutive years as state’s attorney.

The thing to note here is this guy is a life long democrat and part of the Illinois machine. So then, let’s look at the charges of racism and get the whole picture:

The top prosecutor in a southern Illinois county is facing a legal ethics case because of racial remarks he made that derailed a murder trial. Williamson County State’s Attorney Charles Garnati violated four legal ethics rules and “tends to defeat the administration of justice or to bring the courts or legal profession into disrepute,” contends the the Illinois Attorney Registration and Disciplinary Commission in a Nov. 6 complaint (PDF) that was made public on Wednesday. The defendant, who is black, was tried before an all-white jury in July 2011 and sentenced to 85 years before his conviction was reversed on appeal, reports the Chicago Tribune.

“Now in our white world, ladies and gentlemen,” said Garnati at one point during the trial, as he drew a distinction between the way the two races deal with police. In an unusual move, he agreed last summer that the defendant, Marcus Marshall, should get a new trial in the case, which involved the fatal shooting of LaQuinn Hudson at a 2010 party in Marion. A state appellate court reversed Marshall’s conviction in September. The Tribune said Garnati could not be reached for comment Wednesday, and he did not immediately respond to a message left at his office on Thursday morning by the ABA Journal.

Yeah, but we keep getting told that the racists are other people. And no, this is not just one case. This is the one case they couldn’t ignore so we heard about it. In my personal experience I have found the most racist people to always be democrats. Be they white or black ones. And one of the most racist people I have ever seen heads up the DOJ these days.

The Justice Department’s internal ethics watchdog says it never investigated repeated complaints by federal judges that the government had misled them about the NSA’s secret surveillance of Americans’ phone calls and Internet communications.

Two judges on the court that oversees the spying programs separately rebuked federal officials in top-secret court orders for misrepresenting how the NSA was harvesting and analyzing communication records. In a sharply worded 2009 order, one of the judges, Reggie Walton, went so far as to suggest that he could hold national security officials in contempt or refer their conduct to outside investigators.

The Justice Department’s Office of Professional Responsibility routinely probes judges’ allegations that the department’s lawyers may have violated ethics rules that prohibit attorneys from misleading courts. Still, OPR said in response to a Freedom of Information Act request by USA TODAY that it had no record of ever having investigated — or even being made aware of — the scathing and, at the time, classified, critiques from the Foreign Intelligence Surveillance Court between 2009 and 2011.

Those opinions were sufficiently critical that OPR should have reviewed the situation, even if only to assure the department that its lawyers were not to blame, former OPR attorney Leslie Griffin said. “There’s enough in the opinions that it should trigger some level of inquiry,” she said.

So the federal judges who oversee the NSA — remember how the NSA defenders crow about supervision? — believed that they were lied to and deceived and that the DOJ’s lawyers may have knowingly lied to and deceived them. That’s an ethical violation. And the response of the DOJ to this was a massive shrug of the shoulders. Even more, the DOJ told reporters it wouldn’t talk to them about it because they didn’t like the way the story was being reported.

In short, the response of the DOJ to two federal judge saying, “You lied to us!” was, “So?”

It took four years to get the trial started and two days to convict Nidal Hassan of 45 counts of murder and attempted murder. There was never really any doubt about his guilt. The jury will now decide the death penalty.

The one good thing I figured Barack Obama would do as President was go after the shysters in the mortgage industry. Surely a Democrat as liberal as Obama would make sure that those who aided and abetted mortgage fraud would be punished, right? And last year — coincidentally, right before the election — they announced that they had brought 530 cases representing over 73,000 fraudulent mortgages and a billion in lost home value. It was just the tip of an awful iceberg, but it was something.

The Justice Department made a long-overdue disclosure late Friday: Last year when U.S. Attorney General Eric Holder boasted about the successes that a high-profile task force racked up pursuing mortgage fraud, the numbers he trumpeted were grossly overstated.

We’re not talking small differences here. Originally the Justice Department said 530 people were charged criminally as part of a year-long initiative by the multi-agency Mortgage Fraud Working Group. It now says the actual figure was 107 — or 80 percent less. Holder originally said the defendants had victimized more than 73,000 American homeowners. That number was revised to 17,185, while estimates of homeowner losses associated with the frauds dropped to $95 million from $1 billion.

The government restated the statistics because it got caught red-handed by a couple of nosy reporters. Last October, two days after Holder first publicized the numbers, Phil Mattingly and Tom Schoenberg of Bloomberg News broke the story that some of the cases included in the Justice Department’s tally occurred before the initiative began in October 2011. At least one was filed more than two years before President Barack Obama took office.

It will surprise no one who reads this blog that the Justice Department used every tactic short of extraordinary rendition to evade reporters’ questions about the program. When pressed for details of the arrests and prosecutions, they stalled delayed and obfuscating until … get this … after the election.

Oh, and they’ve done it before:

This was the second time, mind you, that Holder’s Justice Department had pulled a stunt like this. In December 2010, Holder held a press conference to tout a supposed sweep by the president’s Financial Fraud Enforcement Task Force called “Operation Broken Trust.” (The mortgage-fraud program was part of the same task force.) As with the mortgage-fraud initiative, Broken Trust wasn’t actually a sweep. All the Justice Department did was lump together a bunch of small-fry, penny-ante fraud cases that had nothing to do with one another. Then it held a press gathering.

At least on that occasion, the Justice Department promptly provided me with a list of the defendants’ names and case details when I asked for them. That is how I was able to determine for a December 2010 column that the government’s Broken Trust numbers were inflated. Among the handful of cases on the list that I spot-checked, one defendant was sentenced to probation before the operation’s supposed start date. Another person on the list had no record of criminal charges. Other cases had nothing to do with any actions by the task force. The Justice Department still hasn’t restated the Broken Trust numbers — even though those statistics clearly were in error, too.

And, just in case you’re wondering about the brokers who piled fraudulent mortgages into tottering piles of securities shit and the ratings agencies that gave those tottering piles of shit AAA ratings: they have not been held responsible either.

Holder is setting records of lies and obfuscations on every issue imaginable. From Fast and Furious to mortgage fraud, he consistently and continuously misleads the American public. And yet when the Republicans tried to cite for contempt (for lying his ass off about F&F), they were branded as anti-Obama-crazed maniacs. And the DOJ is just a fraction of the lies spewed by this Administration on the subject of the law, from claiming they are winding down the War on Drugs while they ramp it up to the head of NSA lying to Congress with a straight face.

So you’ll forgive me if I take today’s announcement of changes to the War on Drugs with some salt. I love the idea of not charging low-level drug offenders with crimes that invoke harsh minimum sentences. But I don’t trust these assholes to actually do it. What I trust them to do is, shortly before the 2014 election, announce that they’ve overhauled or War on Drugs and kept non-violent people out of prison while they continue to do it.

Holder has earned that distrust. And that distrust is the biggest reason why he shouldn’t be Attorney General any more. Respect for the Rule of Law is a critical component to any functioning society. Holder has brought the Rule of Law into contempt. Enough of this.

Henderson police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court.

Anthony Mitchell and his parents Michael and Linda Mitchell sued the City of Henderson, its Police Chief Jutta Chambers, Officers Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, and Christopher Worley, and City of North Las Vegas and its Police Chief Joseph Chronister, in Federal Court.

The Mitchell family’s claim includes Third Amendment violations, a rare claim in the United States. The Third Amendment prohibits quartering soldiers in citizens’ homes in times of peace without the consent of the owner.

What allegedly happened — and I should emphasize that this is from the plaintiff’s complaint, so we don’t have the police side — was that the Henderson PD contacted Mitchell and wanted to use his home to gain a “tactical advantage” against a neighboring house. He refused. They later showed up and started banging on the door, demanding entry (so much for tactical advantage). When he didn’t open up, they smashed the door down, aimed weapons at him, fired pepperball rounds at him and his dog and arrested him for obstructing an officer.

Oh, they also tricked his dad out of a nearby home and arrested him when he tried to return. Both were charged with obstructing an officer. In both cases, the charge was dismissed with prejudice. Again, we don’t have the police side of this story. This was two years ago and the complaint hints that they have tried normal complaint avenues.

If the facts are as the complaint says, I like this. The police in this country have become increasingly militarized and taken an increasingly militaristic approach to law enforcement. This was not a case where there was a fleeing suspect and an imminent danger. According to the complaint, the cops did not show up to argue or persuade or even command. They broke down the door and used SWAT tactics against a completely innocent citizen.

More from Somin, who points out that the Third Amendment has never officially been “incorporated” so that it applies to state and local governments. This could be interesting. But I suspect it will end with some kind of settlement. Because the last thing law enforcement wants is for the Courts to start limiting their military capabilities.

(There are Fourth Amendment issues here as well; stay tuned for a post on that.)

In a major victory for murder suspect George Zimmerman, a judge Saturday ruled that prosecutors may not put on the witness stand two state audio experts who say the voice heard screaming for help on a 911 call was someone other than Zimmerman.

Those screams, recorded while Zimmerman was fighting with 17-year-old Trayvon Martin, are the most dramatic piece of evidence in the high-profile murder case.

Zimmerman, a former Neighborhood Watch volunteer, says they came from him, that he was calling for help after Trayvon attacked him. Trayvon’s parents say they are from their son and are his last words before Zimmerman shot him in the chest.

Circuit Judge Debra S. Nelson had heard three days of testimony about the science used by the state’s experts. On Saturday she ruled that it failed to meet Florida’s legal standard.

Jurors can expect prosecutors to still play the audio. They’ll also likely hear testimony from Trayvon’s mother and perhaps father that the screams came from their son. Zimmerman’s father, Robert Zimmerman Sr., has testified that the voice is his son’s.

Four other experts testified that what these guys are doing is pseudo-scientific bullshit. Since the Zimmerman case surfaced, “audio experts” have been crawling out of the woodwork, making wild claims about racial epithets, prayers and screams heard on phone calls. None of its has crossed me as remotely scientific or accurate. And I’m glad the judge saw through this.

Bullshit forensic testimony is a big problem in the US courts. Some time ago I blogged about the Cameron Todd Willingham case, where a man was convicted and executed for a triple arson murder based on forensic evidence that was slightly more accurate than waving voodoo rattles over the ashes. Radley Balko has written extensively about the completely bogus “bite mark” analysis that was used in many cases in Mississippi. During the Satanic Cult panic of the 80’s and 90’s, we saw many “occult experts” give testimony that was completely made up. One of these “experts” played a key role in the conviction of the West Memphis Three.

Let the jury decide if they hear anything significant on the tapes. I see no reason why some idiot with a computer and a persuasive voice should be allowed to present himself to the jury as an “expert” when he clearly isn’t.

The U.S. Supreme Court ruled today that police don’t need a search warrant before they open your mouth and take a swab of DNA.

The Supreme Court ruled in a 5-4 decision that DNA swabs are a “legitimate police booking procedure” that is allowed under the Constitution just like fingerprinting and mugshots.
The court’s swing voter Justice Anthony Kennedy wrote the majority opinion, which said DNA identification has become an important tool to help police identify suspects.

Supposed fascist Scalia actually sided with the liberal court on this one, pointing out — correctly in my view — that the state’s argument that they are using DNA primarily to identify people (and only investigating past crimes by coincidence) is absurd.

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work

Of course, any DNA taken is going to be used to solve crimes. That’s precisely what they did in the case of Alonzo King, who was convicted of a six-year-past rape because of a DNA match drawn when he was brought in for an unrelated crime. While I’m a bit mixed on whether DNA swabs should be allowed, the Court’s reasoning, which compares fingerprinting to jabbing a swab in someone’s mouth and running it against a crime database, seems as odd to me as it does to Scalia.

(You should also read this article about the statistical problems in blind DNA database searches. If your are matching the DNA of someone you already suspect of a crime, those one in a million stats mean something. However, the DNA databases are so massive that, for a blind search, the chance of finding a bogus match for someone’s DNA on any crime is much much higher. If you have 300,000 crimes in your database, the chance of a one in a million match to something is actually one in three.)

I want to address a point that came up in our discussion of the the Kaitlyn Hunt case last week (which is turning out to be a little more complicated than my initial post). No one questions that Kaitlyn was in literal violation of the law. She was an 18-year-old who has sexual contact with a 14-year-old, which is illegal in Florida (and most other states). So shouldn’t we enforce the law? Whatever we may think of the law, she broke it and should be punished, right?

Let’s pull back a moment from that particular case into the broader legal issue. There is a school of thought that says that we should enforce all the laws without exception. If a law is badly written, we should change it. But refusing to enforce a law or making an exception to the law that is not written into it is the pathway to anarchy. That used to be my philosophy but I’ve come to realize that such a rigorous approach puts us on a short road to legal disaster.

The problem is best illustrated in this excellent cartoon. First, we have thousands of laws that apply to any of us at any time. It is almost impossible to go through your life without having violated one of them. We have bureaucrats who are constantly extending not just the law but very real criminal sanctions for violating those laws. Second, we have abandoned the concept of mens rea, that someone had to have had evil intent in violating the law. And so we end up with a situation where a woman picks a father up off the ground and end up with felony charges for violating the Migratory Bird Act.

In an ideal society, we would be constantly looking over our books to remove bad laws, clarify unclear ones and modify or remove outdated ones. But we don’t live in that society. On the contrary, we live in a society where bureaucrats are constantly pushing the boundaries of law and politicians are afraid to change obviously bad laws for fear of being pilloried. Sex offender laws are a perfect example. We’re putting children on these things and ruining their lives. But no politician is willing to do anything about it because they don’t want to be branded as sympathetic to child molesters (even though molesters are a small fraction of those on the registers).

To prevent innocent people from being gobbled up by bad laws, we used to fall back on Common Law. We recognized that laws are not written on stone tablets by God, but crafted by men. As such, they are imperfect and can not anticipate every eventuality. Bureaucracies specifically tend to see things in a very narrow light. So we used to apply common sense to law enforcement, recognizing when someone might be technically violating the law but it made no sense to prosecute them. We recognized that the law is not an end in an of itself. The law is a means. The end is justice. What would be just about putting a woman in prison for picking up a hawk feather?

We should enforce our laws. But we also need to recognize when a law is unjust or when it is simply inappropriate to a situation. We’ve gotten away from the idea that judges and juries are supposed to judge both the case and the law. We think only the Supreme Court can judge laws. But jury nullification and prosecutorial discretion are in the very DNA of this nation, from when juries and prosecutors refused to enforce the King’s unjust laws. Putting someone in jail for violating a badly written law and only then changing the law is like mapping out a minefield by stepping on all the mines.

The Hunt case, specifically, is a little more complicated than her supporters let on. But the general point stands. We should not become robots mindlessly enforcing laws in a Napoleonic fashion. The intent of the law is to protect young teenagers from being taken advantage of by grown adults. If the law is threatening felony charges against a high school senior for having consensual sex with a high school freshman (14 and 18 years old, not 15 and 17), I would submit that the law is faulty. And it is the duty of the prosecutors, the judge and the jury to recognize that and account for that.

“But we need to be a society of laws, not men!” Yes. But if we become a society of rigid adherence to every law on the books, we will all end up in prison. We will all find, whenever the authorities don’t like us, that we have violated some obscure law intended for some completely different purpose. We will find that a federal law intended to protect migratory birds from being hunted to extinction is jailing some lady who picked a feather up off the ground. We will find that sex offender registries intended to protect us from predators ruin the lives of 12-year-old kids. We will find 16-year-old girls who take nude pictures of themselves prosecuted for child pornography. We will find that laws intended to stop 50-year-old men from taking advantage of naive 14-year-old girls snare high school seniors instead.

The law is not perfect. Nor is not perfectible. Let’s not pretend that it is. The question in the Kaitlyn Hunt case — and in any similar case — should not be if she technically violated the law since she clearly did. The question should be if applying the law in this case is just. I’m witholding judgement now since some of the information circulated by her supporters has turned out to be inaccurate (H/T to Thrill for fact-checking me on that). But “that’s what the laws says so … too bad” is simply not enough when it comes to a potentially life-ruining prosecution.